The government’s
authority to screen passengers passing security checkpoints at airports is in
no way dependent on the passenger’s express or implied consent, the Ninth U.S.
Circuit Court of Appeals ruled Friday.

In a 15-0 en banc
decision, the court—which has previously upheld Transportation Security
Administration procedures—made it clear that a potential passenger may be
subjected to screening even after offering to leave the airport without
boarding a flight instead.

The judges affirmed
Daniel K. Aukai’s conviction for possession of more than 50 grams of
methamphetamine with intent to distribute. Aukai pled guilty, but reserved his
right to appeal, after U.S. District Judge Helen Gillmor denied his motion to
suppress.

He was sentenced to 70
months in prison, plus five years’ supervised release.

Aukai was arrested at
Honolulu International Airport in February 2003. Testimony at the suppression
hearing indicated that he checked in for a flight from Honolulu to Kona, but
did not have government-issued photographic identification.

‘No ID’

A TSA officer explained
that when a passenger lacks ID, the airline may issue a boarding pass marked
“No ID.” Unlike passengers who present ID, the “No ID” passenger is subject to
the more intrusive “secondary screening”—in which an officer passes a handheld
“wand” close to the passenger’s body—even if the primary screening does not set
off an alarm.

When Aukai went to
secondary screening, the officer testified, the alarm sounded as the wand
passed over his pocket. When Aukai insisted he had nothing in his pocket, the
officer “wanded” him again, and the alarm went off again.

At this point, according
to the testimony, a TSA supervisor came over and ordered Aukai to empty his
pockets. After he took out a few items and insisted his pocket was now empty,
however, the supervisor noticed a bulge in the pocket—which he said looked like
the outline of a possible weapon—and called police.

Aukai finally removed
the object, which turned out to be a glass pipe. Following his arrest, he was
searched and several bags of what turned out to be methamphetamine were found.

In moving to suppress,
Aukai claimed that at some point during the screening process, he told the TSA
officer he had changed his mind and no longer wanted to fly that day. But Judge
Carlos Bea, writing for the Court of Appeals, said that the agents were
entitled to complete the screening process even if that was true.

That process, Bea said,
is valid under the Supreme Court’s “administrative search” jurisprudence.

‘Special Need’

The high court, he
explained, has held that the government may conduct a warrantless search in the
exercise of its regulatory authority, provided that there is a “special need”
and the search is no more intrusive than is justified by the administrative
need. He cited cases upholding a warrantless search of a junkyard and its
records, as part of a regulatory program designed to deter theft and control
insurance rates; as well as the use of sobriety checkpoints.

The Supreme Court, Bea
noted, as held that a valid administrative search does not require consent. In United
States v. Biswell, 406 U.S. 311 (1972), the court held that a gun dealer’s
participation “in this pervasively regulated business” subjects the business
premises to warrantless searches authorized by federal statute.

Suggestions in two prior
Ninth Circuit cases that a passenger could have avoided a search by turning
back prior to submitting to the initial screening were erroneous, Bea wrote.
“The constitutionality of an airport screening search...does not depend on
consent...and requiring that a potential passenger be allowed to revoke consent
to an ongoing airport security search makes little sense in a post-9/11 world,”
Bea wrote.

Judge Susan Graber,
joined by Judges Michael Daly Hawkins and Kim M. Wardlaw, concurred separately.
While agreeing with the majority that Aukai was subjected to a valid
administrative search, Graber said the references to 9/11 and terrorism were
“irrelevant and distracting.”

Graber wrote:

“By relying on those
factors, the majority unnecessarily makes its solid holding dependent on the
existence of the current terrorist threat, inviting future litigants to retest
the viability of that holding.”